There is no evidence that this loss was owing to any peril of the seas or any defect of the ship, and I do not think it is to be accounted for by the season of the year in which the passage was made. The warmth of the captain’s cabin floor and the blistering of paint on the pails, with other testimony, point to heat as the cause of the loss, and this heat must have been from the cake or the hoofs. That such a loss cannot be said to be a common occurrence, is admitted by the defence made by claimant. There never could be a custom of stowing in any manner which would ordinarily result like this. There must have been some extraordinary cause of this phenomenon, and we have to rely on circumstantial evidence to ascertain what it was. The custom of stowing oil-cake near other cargo liable to be injured by heat shows that there is no principle of deterioration necessarily inherent in the cake. In its ordinary condition, the New York witnesses say it heats no more than grain. There must have been something unusual in the condition of this cake on the voyage. The only cause of the heat that any witness assigns is dampness; and this is strong circumstantial evidence that some of the cake was green when put on board, or that it was moistened after-wards. And a former agent of one of the-mills has shown that a change has been made in the manufacture of the cake in that mill, by using less water than formerly. If a usage to store cargo in this way is to be made out, it is a Boston usage, and must depend upon the quality of the cake from all the mills that ship from Boston; and the fact that since 1858, changes have been made in the management of one of them, on account of actual damage to their cake on various voyages, is a presumption that the two other mills sent out a different article, for there is no proof that they experienced such losses. I cannot help thinking that the oil-cake from this mill may have been not in good condition when put on board.
There is some testimony that the hoofs stowed in the forepeak were wetted by showers before putting on board, and that steam issued from the fore hatch just over them, while the vessel was at the wharf loading. This is strengthened by the fact, that there was dampness in the cake from some source; and it may be, that the hoofs moistened the cake, and the cake then heated the hold and shrunk the casks. This seems to me to be the more probable solution of the cause of the loss. That position of the evidence seems to me to throw the burden of the loss on the carrier. If the shipper had assented to the mode of stowing his oil, it might preclude him from now objecting; but that assumes that the other articles of the cargo were in good condition, or at least that he assented to the stowing with those particular articles.
The shipper in this case only knew tnat the cargo was to be made up mostly of “oil-cake.” He cannot be held to have assented to the stowing with this cake, or such as this, if this was unseasoned. It is not necessary to come to a conclusion whether this was customary stowage. If it were proved that it was customary, and that this cake was put on board no more than ordinarily wet, I am not sure how this case would be decided. The case of Baxter v. Leland [Case No. 1,124] is the strongest for the claimant; but the custom in that case is spoken of as one long established and well known. And a circumstance relied upon by both Betts, J., and Nelson, J., in that case, is the fact that the shipper knew of the usage, and made provision for it. And the loss was not as large in proportion as this. In Lamb v. Parkman [Id. 8.020] there was not such unusual damage as this. I should be surprised to find an established usage going the length of this case. Decree for the libellants.
See Gillespie v. Thompson, cited 6 El. & Bl. 477, note, 30 Eng. Law & Eq. 227; The Col. Ledyard. [Case No. 3,027]; Bearse v. Ropes [Id. 1,192],